Phil Querin Article - Tips and Traps and Lessons Learned

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June 6, 2017
Phil Querin
MHCO Legal Counsel
Querin Law

 

The following items are a compilation of “lessons learned” from some of the cases I have been involved with over the years.  Many of you have attended MHCO seminars where I’ve discussed them.

But it never hurts to be reminded….

 

 

 

1.  “Pick Your Shot” Never pick a fight you don’t think you can win.  And if you decide to fight, make sure you get in your best shot.  By this I mean the following:  (a) Just because a tenant has violated one of the park rules, don’t think the first thing you must do is file a 30-day notice to terminate.  If you file the notice, you’ve got to stick with it.  If the tenant fails to make the correction within the 30-day period, you may have no choice but to file for eviction.  Most lawyers want to go to court in an eviction proceeding with a file showing that the landlord or manager has “walked the extra mile” in trying to work with the tenant.  Judges and juries can be naturally sympathetic to tenants.  It bodes better for landlords when the evidence suggests that the tenant was either ignoring the landlord, or intentionally trying to aggravate the situation by breaking the rules.  Landlords and managers should strive to have at least two – if not more – polite reminder notices sent to the tenant.  The reminder does not have to give the tenant 30 days to come into compliance.  If a week is reasonable, give a week.  If compliance doesn’t occur within that time, send a second reminder, giving another week.  If compliance occurs, but the violation reoccurs, give another reminder.  The more paper in the file, the better the landlord’s chances of prevailing in court.  (b) Once you decide to file for eviction, make it your best shot.  For example, if the tenant has broken three of the rules, only select the most serious ones.  And if the violation is something that can be verified by photographs, take some.  Make sure that the photos accurately depict the conditions constituting the violation as of the date immediately preceding the date of the 30-day notice.  When the 30 days has expired, immediately take another set of pictures that prove the violation was not cured.  Never take the pictures on the 29th or 30th days.  Take them on first day after expiration of the 30 days.  Also, if the matter does go to court and the violation still exists, take pictures immediately before trial.  (c) If the case is capable of being resolved prior to filing, or even prior to court, give it serious consideration.  For example, say the tenant cured the violation on the 35th day after receiving a 30-day notice – and has pictures to prove it.  It is doubtful that a judge will evict them, even if they were technically outside of the 30-day compliance period.  Consider dismissing the case if the tenant will pay the filing fees.

 

 

2.      Draft All Default Notices Carefully  In the vernacular of lawyers, the notice is “jurisdictional” – that is, it is the basis upon which the court will or will not exercise jurisdiction by hearing the case.  If a 30-day notice is defective, say because it gave the tenant 29 days to comply instead of 30, the court cannot hear the merits of the case.  You could have the best case in the world, and would have won in court without question – but it will make no difference if the notice is defective.  The court has no alternative but to dismiss the complaint.  If the tenant was represented by an attorney who filed an answer or other legal document on behalf of the tenant, it is probable that you will have to pay his/her attorney fees.  Accordingly, if in doubt, have your attorney review the notice before it goes out…especially if the tenant is one that will likely refuse to comply and force you into court.

 

3.      Don’t be Afraid to Dismiss  If the notice is obviously defective, there is a high likelihood that the other attorney will recognize it.  If so, consider dismissing the case as soon as possible.  It will serve no purpose – except to pad the other attorney’s pocket book – by continuing the fight in court.  Sometimes it is better to simply start over.  Dismiss the case, send out a corrected notice, and if the tenant fails to comply, file another eviction.  Although Oregon law does not require that landlords use an attorney to file evictions, it is always a good idea in those cases in which you know the tenant is already represented, or will seek legal representation before trial.  In such cases, landlords should consider having their attorney at least review the background facts and notice before the eviction is filed.

 

4.      Maintenance Violations  These are one of the most prevalent and difficult of tenant violations.  There are several reasons.  Frequently, the violation, say continually storing “junk” on the space in plain view from the street, is really a matter of degree.  For example, while a barbecue and picnic chairs, neatly covered, may not be a problem, if they are old wooden chairs, a dilapidated table, a broken down barbecue, and an old air conditioner, all covered with a torn canvass tarp held in place by firewood, it will pose a problem.  Unfortunately, it is frequently such cases that gets into court – the tenant arguing that the problem is not as bad as the landlord maintains.  Also, landlords must be careful about consistent treatment.  It makes little sense to go to court against one tenant with a poorly  maintained space, if there are a dozen others whose spaces are just as bad.  In such cases, where the landlord (or perhaps the predecessor landlord) has been lax in enforcing maintenance violations, it is wise to first send out a park-wide notice to all tenants that the maintenance rules will be enforced.  The notice should request that all tenants clean up their spaces, if necessary.  Give everyone 30, 45, or 60 days to comply, during which time the manager should work with the worst offenders.  Managers should take careful notes, documenting their efforts to secure compliance.

 

5.  Select & Keep Good Managers  Not only is this good for the landlord, but it is good for tenant relations, as well.  There are exceptions.  Some tenants will attempt to demonize even the best managers.  Unfortunately, the reverse can be equally true.  But generally, good managers will get along with their tenants.  This will go a long way in keeping peace in the park.  But being a good manager is not simply being liked by the tenants.  Good managers will enforce the rules in an even-handed and fair manner.  They will be cordial with tenants and always attempt to communicate a rules violation first with a visit or phone call.  Such efforts should always be documented for the file.  Evictions can be won or lost depending upon whether the managers are likeable.  My experience has been that when a dispute gets into court, the tenant, along with his/her witnesses, will attempt to place blame on the conduct of the manager.  For this reason, the history of any case that finds its way to court should be replete with documentation that the manager attempted to work with the tenant.  The judge and/or jury should be convinced that the eviction was a last resort, and that the manager did everything humanly possible to secure the tenant’s compliance before the case was ever filed.

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